Minister Flanagan and Minister Madigan welcome passage of the Thirty-eighth Amendment of the Constitution (Dissolution of Marriage) Bill 2016 through the Dáil
3 April 2019
The Minister for Justice and Equality, Charlie Flanagan TD, and the Minister for Culture, Heritage and the Gaeltacht, Josepha Madigan TD, have welcomed the passage of the Thirty-eighth Amendment of the Constitution (Dissolution of Marriage) Bill 2016 through the Dáil. The Bill will now go to the Seanad for consideration.
If the Bill is passed by both Houses of the Oireachtas, a referendum will be held on 24 May, the same day as the Local and European Parliament elections, asking the people to agree to allow the Oireachtas to legislate to reduce the separation period for couples wishing to divorce to two years out of three and to modernise the constitutional clause on recognition of foreign divorces. The constitutional protections in respect of proper provision, no reasonable prospect of reconciliation and the role of the Court will remain.
Minister Flanagan said:
“I want to thank colleagues on all sides of the House for their support for the Government’s referendum proposal and for their cooperation in the passage of the Bill. At the heart of this proposal is a desire to ease the burden on people whose marriages have broken down. The current constitutional provisions mean that couples frequently go through the process of a separation agreement or judicial separation before divorcing, adding cost and stress to an already sad and difficult situation. We have a low divorce rate and that is very welcome but where couples wish to divorce, they are being left for too long in a legal limbo.”
Minister Madigan, who originally introduced the Bill before her appointment to Cabinet said:
“I am delighted that this Bill, which I introduced from the backbenches, has now been passed by the Dáil. As a family law solicitor, I am very conscious of the additional pain, suffering and expense that couples and their families go through while waiting for four years before they can apply for divorce. The countless cases of marital breakdown that I encountered when working as a solicitor motivated me to seek this legal change. I am pleased the Bill is now ready to be considered by the Seanad.”
Note to Editors:
- On 24 May, the people will be asked to:
1. Amend Article 41.3.2 of the Constitution to remove the minimum living apart period for spouses seeking a divorce; and
2. Replace the current text of Article 41.3.3 with a provision to allow the Oireachtas to legislate for the recognition under the law of the State of a divorce granted under the civil law of another state.
- If the referendum is passed, the Government will bring forward a Bill to amend section 5(1)(a) of the Family Law (Divorce) Act 1996 to reduce the minimum living apart period for spouses to two years during the previous three years. This Bill will be along the lines of the draft General Scheme of the Family Law (Divorce) (Amendment) Bill, which the Minister has published.
- The Domicile and Recognition of Foreign Divorces Act 1986 governs the recognition of a divorce granted in a country outside of the EU. That Act provides for the recognition of a foreign divorce that is granted in the country where either spouse is domiciled at the time the divorce proceedings are instituted. EU Council Regulation 2201/2003, also known as the Brussels II bis or the Brussels IIa Regulation, governs the recognition of divorces obtained in another EU Member State. Habitual residence is the key governing criterion for recognition. Minister Flanagan has indicated that he intends to legislate to introduce greater consistency in the recognition of foreign divorces and that he will be guided by the expert report of the Law Reform Commission in developing proposals for legislation. The Law Reform Commission has included in its Fifth Programme of Law Reform an examination of recognition of foreign divorces.
- The referendum will not propose any changes to the other provisions in Article 41.3.2, namely that:
- only a court may grant a divorce;
- there is no reasonable prospect of a reconciliation between the spouses; and
- proper provision exists or will be made for the spouses, any children of either or both of them and any other person prescribed by law.
- The Thirty-fifth Amendment of the Constitution (Divorce) Bill 2016, a Private Members' Bill, was introduced by Minister (then Deputy) Josepha Madigan to the Dáil. It proposed to amend Article 41.3.2(i) of the Constitution to reduce the minimum period that spouses must have lived apart before applying for divorce from four years during the previous five years to two years during the previous three years. Following analysis, legal advice and consultation with all sides in the Oireachtas, the Government agreed that removing the living apart period from the Constitution so that it could be dealt with in ordinary legislation by the Oireachtas would be a more appropriate means to address this complex area of social policy. The Government’s amendment to the Bill were approved by the Dáil this evening. The title of the Bill has been changed to the Thirty-eighth Amendment of the Constitution (Dissolution of Marriage) Bill 2016.
- If passed, the Government will legislate to reduce the living apart period to two out of the proceeding three years. The text of the General Scheme of the Family Law (Divorce) (Amendment) Bill has been published and can be found on the website of the Department of Justice and Equality at: